Opportunistic Originalism and the Establishment Clause

Abstract

This Article argues that the Supreme Court's use of originalism is opportunistic because sometimes the Court relies on it, and sometimes it does not. This inconsistency is evident in two recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014) and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government's policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to award a cash grant to a Christian church. The Court's inconsistent application-even when dealing with a single clause-raises the possibility that the Court's use of originalism is based less on principle than on desired outcomes.